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Nieto v. Dittman

United States District Court, W.D. Wisconsin

March 20, 2018

JUAN NIETO, Plaintiff,

          OPINION & ORDER


         Pro se plaintiff Juan Nieto, a prisoner in the custody of the Wisconsin Department of Corrections, is proceeding against defendant prison officials on deliberate indifference and medical malpractice claims. Nieto contends that defendants delayed diagnosing and treating his broken toe and bone spurs for almost two years, despite knowing that he was in great pain. Defendants have moved for summary judgment on all claims. Dkt. 43. Disputed issues of material fact preclude resolution of several claims, so I will deny defendants' motion in part and recruit counsel to assist Nieto at trial.


         The following facts, except where noted, are undisputed.

         Nieto is currently incarcerated at the Stanley Correctional Institution (SCI). He was incarcerated at the Columbia Correctional Institution (CCI) from June 27, 2006, to July 13, 2017.

         On November 11, 2013, Nieto submitted a health services request (HSR) about “problems” with his feet and wrist. Dkt. 46-1, at 72. The next day, Nieto met with defendant Kim Campbell, a nurse. He explained that his right wrist and both of his big toes hurt ever since he slipped and fell into the wall during recreation two weeks prior. Campbell noted that Nieto's left big toenail appeared “yellow” and “brittle, ” but otherwise showed no bruising or swelling. Id. at 118. (Nieto now says that in fact his left toe was bruised and swollen. Dkt. 42, at 45:22-46:5.) Campbell noted that Nieto expressed “slight discomfort” to palpation of the left toe. Dkt. 46-1, at 118. She instructed Nieto to rest and use acetaminophen to control the pain. She indicated that she scheduled a follow-up appointment in two weeks.


         Five days later, Nieto submitted another HSR explaining that the medication he received did not adequately control the pain in his feet and wrist. See Id. at 73-74. He requested another appointment and was told that one was scheduled.

         Nieto attended a follow-up appointment with defendant Denise Valerius, another nurse, on November 25. Id. at 25. Valerius noted that Nieto rated the pain in his toes as a seven out of ten, with the right toe more painful than the left. She noted a decreased range of movement in the right toe due to the pain. She gave Nieto ibuprofen to control the pain and instructed him to submit another HSR for a follow-up appointment with a doctor if he found no relief after two weeks. Nieto says he submitted another HSR on December 10, about two weeks later, “requesting help in pain, ” but the evidence that he points to in support of this proposed fact-“exhibit 6”-has not been filed with the court. Dkt. 57, ¶ 30; see also Dkt. 24 (informing Nieto that “exhibit 6” was not included with the exhibits he submitted). Medical records do indicate, however, that Nieto was prescribed ibuprofen on December 26. See Dkt. 46-1, at 35.

         On January 21, 2014, Nieto submitted another HSR complaining that he still hadn't been seen by a doctor about “the problem” with his “feet.” Dkt. 46-1, at 71. A response dated January 22 indicated that Nieto was scheduled to see a doctor. There's no record of a visit with a doctor, but on January 24, Nieto was prescribed ibuprofen, among other drugs. See Id. at 34.

         After waiting several months, Nieto submitted another HSR on March 31, complaining that it “had been 5 months since” he had been seen “about the problems with [his] feet, ” despite his being told that a doctor would see him. Id. at 70. He explained that “the problem [was] still hurting [his] feet.” Id. A response dated April 2 indicated that Nieto would be seen by a doctor “in approximately a month.” Id. But that appointment never materialized.

         Nieto submitted another HSR on July 14, complaining that he had “been waiting to see the doctor for more than six months about the problem with [his] foot.” Id. at 67. Valerius responded the next day indicating that he was scheduled to be seen by a nurse in “mid-August.” Id. On August 10, Nieto submitted another HSR. See Id. at 64. The first page of the request concerns an unrelated problem with Nieto's eye. A second page is missing. Defendant Meredith Mashak, a health services manager, responded to the request the next day: “Opto apt this week. Sick call for eye & toenails.” Id.

         On September 8, Nieto submitted another HSR explaining that he was supposed “to see the doctor in the middle of last month for the problem with [his] toes” but was never called for an appointment. Id. at 65. He asked for an appointment “sometime in this week.” Id. The next day, he received a response that he was scheduled for a follow-up appointment with a doctor. Id. But once again, that appointment never materialized.

         On November 14, Nieto was seen by defendant Kathleen Whalen, a nurse clinician. (The records for that appointment indicate that it was “initiated by” an HSR dated November 13, id. at 23, but neither party has submitted a November 13 request.) Whalen noted that Nieto reported that the pain in both of his big toes had lasted for more than a year, he saw a nurse “last year” about this pain and was supposed to see a doctor about it but never did, and that after running for about 10 minutes, the pain escalated to the point that he couldn't walk. Id. Nieto rated the pain as a 4 or 5 out of 10. He explained that he thought x-rays would be appropriate to diagnose the problem. Whalen examined Nieto's toes and noted that circulation, motion, and sensation were “good” and that there were no visual deformities other than fungus under the right toenail. Id. Whalen instructed Nieto to continue exercising “as able, ” use over-the-counter medication to control the pain, and notify the Health Services Unit if his symptoms worsened. Id. at 24. At Nieto's request, she scheduled a follow-up appointment with a doctor. A week later, Nieto submitted an HSR complaining that he was charged two copayments “to be seen for the same problem.” Id. at 60. Mashak responded that a second copayment was due because he “had not been seen in over 60 days.” Id.

         On January 14, 2015, Nieto was first seen by a doctor, defendant Karl Hoffman. According to Hoffman's notes, Nieto complained of pain in his right big toe that began “approximately 10 months ago” when he slipped and “kicked the wall” while playing basketball; the pain had “gradually improved” since then but not disappeared. Id. at 21. Hoffman examined Nieto and noted that “[t]e right toenail is thickened and yellow [and t]he right great toe is tender.” Id. He also noted “[d]iscomfort with passive motion of both the MTP and PIP joints [and a] thickening of the distal right first metatarsal suggestive of a bone spur.” Id. He prescribed Nieto medication to treat the apparent fungal infection and ordered x-rays of the right big toe. Hoffman did not mention Nieto's left toe, but Nieto argues that he complained of pain in his left toe during the January 14 encounter-he points to a nurse's report written later that year, which records Nieto's complaint that “back in January, [he] told Dr. Hoffman both [his] feet were hurting, ” but Hoffman only ordered x-rays of his right foot. Id. at 19. Hoffman states in a declaration that Nieto never complained about his left toe at the January 14 encounter. See Dkt. 50, ¶ 11.

         On January 20, x-rays were taken of Nieto's right foot. A radiologist found “a small avulsion fracture [at the] base of [the] first proximal phalanx.” Dkt. 46-1, at 39. Hoffman reviewed the radiologist's report on January 23. It appears that he did nothing in response. He now states in his declaration that the “standard protocol” for treating such a fracture “would be rest and over-the-counter pain medication, which Nieto had available to him.” Dkt. 50, ¶ 12.

         On June 3, Nieto submitted an HSR that read, “A couple months ago you took an x-ray on my foot, but you never told me if I have a fracture or not because I'm still feeling the pain every time I jump or kick something by accident.” Dkt. 46-1, at 50. He was told to “send disbursement form for copy.” Id. On June 15, Nieto submitted another HSR that read, “Like a week ago I wrote to you asking about the x-ray that you took of my foot. What I want to know is what are the results of the x-ray. Please could you let me know because I'm still feeling pain. Thank you.” Id. at 49. He was against directed to submit a disbursement form. He submitted the required form on June 18 and received a response the following day with a one-page enclosure-presumably a copy of the radiologist's report. See Id. at 48.

         On July 8, Nieto filed a grievance about “the lack of proper treatment” for his “broken bone.” Dkt. 19-2, at 11. He attached some medical records and a timeline of his HSRs and medical appointments. He asked that he be scheduled to see a doctor “to get effective management ...

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